A Chance for Supreme Court Damage Control

Posted on Sep 12, 2010

By E.J. Dionne Jr.

Imagine that your neighbors started getting letters describing all sorts of horrific deeds you had allegedly performed. Wouldn’t you feel you had the right to know who was spreading this sleaze—especially if the charges were untrue?

Now imagine a member of Congress telling a lobbyist from Consolidated Megacorp Inc. that she would do all she could to block an extra $2 billion in an appropriations bill to purchase the company’s flawed widgets for the federal government. A week later, television advertisements start appearing in the representative’s district portraying her as corrupt, out of touch and in league with lobbyists.

It turns out they are being paid for by Consolidated Megacorp through contributions to a front group called Americans for Clean Government. Shouldn’t the voters be able to know who is behind the ads?

This hypothetical tale is not fantasyland, thanks to the U.S. Supreme Court’s hideous decision earlier this year in the Citizens United case. But with Congress coming back this week, there’s a chance to limit the damage the court has caused—if three moderate Senate Republicans are willing to act.

In a decision that was either the most Machiavellian in American history or the most naive, a 5-4 conservative majority broke with decades of precedent and said Congress had no right to ban corporate or labor union spending to influence the outcome of elections. The court ruled that corporations such as Consolidated Megacorp have to be treated the same as living, breathing “persons.”

The decision is Machiavellian if the conservatives on the court consciously want to bring us back to the 1890s. Or it’s naive because the justices didn’t consider what their ruling would mean in practice.

Sponsors want to bring back a Senate bill that would let voters in on the game by requiring corporations and unions to disclose their political spending, even if it is laundered through third-party groups. Voters in my beleaguered representative’s district would get to know who was trashing her.

A disclosure bill has already passed the House, and the Senate version, sponsored by Charles Schumer, D-N.Y., got 58 votes, with 60 needed for passage. The key to its defeat was three Republican senators—Olympia Snowe and Susan Collins of Maine and Scott Brown of Massachusetts—who say they support reform and disclosure in principle but objected to particular aspects of the bill.

One of their objections, that the bill would alter the playing field for this year’s midterm elections, is now irrelevant since it’s too late to change the law for the campaign leading up to November’s contests.

The threesome raised other issues, including supposed imbalances in the way corporations and labor unions are treated under the measure. But Schumer has signaled he would be happy to negotiate, and the simplest solution may be a clean disclosure bill that would strip out some of the provisions that the three Republicans don’t like.

This, however, presumes the three would-be GOP reformers are willing to put their votes where their public declarations are, in the face of enormous pressure to side with the Consolidated Megacorps of the world.

If Senate Republican leader Mitch McConnell has a central cause, it is the principle that money should slosh around freely in our political system. If the members of the threesome vote for disclosure, they will infuriate McConnell. But if they side with McConnell, they’ll be tossing away their reformist credentials.

The matter is especially poignant for the two Maine senators, who have a history of sympathy for campaign finance reform. Earlier this year, tea party favorite Paul LePage won the Republican gubernatorial primary in Maine, defeating a large field that included Collins’ former chief of staff.

As moderate Republicans, Snowe and Collins are undoubtedly looking over their right shoulders, fearful that they may go the way of Sens. Lisa Murkowski and Bob Bennett. This helps explain why they went south during negotiations over the health care bill.

But repairing Citizens United is not an ideological question, although some cast it that way. Fiscal conservatives should be as worried as anyone about corporations using their newfound power to extract expensive special benefits from the government. Even conservatives who opposed campaign reform in the past have always insisted that they favor disclosure of campaign contributions. Disclosure is now more important than ever.

Snowe, Collins and Brown have made their careers by touting their independence. But that claim doesn’t come cheap. This is the issue on which their promissory note is due.